This may seem like an odd pick in a list of best books of the year for an international law forum. There is little in this book that expressly addresses international law, and the term ‘international law’ is only used a handful of times.

However, it is precisely the absence of law that makes the book compelling. It is a powerful reminder of the frailty of international law in international crises. The weakness of international law in such moments may have been particularly apparent in the Nixon era, but of course is more generally relevant.

The story that Gary Bass, a political scientist at Princeton, tells us is not totally unknown. [See for earlier discussions eg Srinath Raghavan, 1971: A Global History of the Creation of Bangladesh (Harvard University Press: 2013); Deborah Mayersen, Annie Pohlman Genocide and Mass Atrocities in Asia: Legacies and Prevention (Routledge, 2013). Also Samantha Power’s A Problem From Hell: America and the Age of Genocide (Basic Books, 2002) has relevant insights.] Much has been disclosed already about the decision of the United States in 1971 not to use its powers to stop the killing of an estimated 300,000 Bengals (most of them Hindus) by the Pakistani Army. The US also did not act to prevent the fleeing of about 10 million Bengals to India. The US found it more important to maintain good relations with the Pakistani president Yahya Khan so that he could serve as a liaison with China and prepare the way for the opening to China. Moreover, they wished to strengthen and prepare Pakistan for battle with Cold War enemy India. The US not only wilfully abstained from pressuring Yahya Khan to change his ways. Virtually the entire Pakistani military was equipped with American weaponry and depended on the United States to keep it operating.

What makes the account by Bass a must-read is not so much this tragedy as such, but the gripping and excruciating detail in which it zooms in on the doings of Nixon and Kissinger, who was at that time Nixon’s national security adviser. As international lawyers we tend to say the US did this or that. However, Bass makes it very clear that to understand such statements, we really have to understand what Nixon and Kissinger did, and why. Bass had access to hitherto undisclosed audio recordings, including Nixon’s White House tapes, declassified State Department documents and interviews with former officials who were involved. The detail and the tone of the conversation between Nixon and Kissinger, who were later both embraced as wise elder statesmen, places the reader sometimes in an uneasy voyeuristic position, for instance when in a discussion with Kissinger Nixon remarks that what the Indians need is a ‘mass famine’.

What also makes the book gripping is its exposure of the indirect strategic manoeuvres that were part and parcel of the Cold War. The balance of power of the Cold War, seemingly sustained by international law, may have secured a relative peace between the US and the USSR. But part and parcel of that apparent peace was a whole series of wars fought between, and through, allies in Latin America, Africa and Asia. Bass demonstrates how the Cold War was not cold at all, and that both the USSR and (in this case) the US share blame for regional wars and mass killings around the world – a blame that was never translated into any form of legal responsibility.

Particularly instructive for international lawyers is the very absence of references to international law when US policy was designed. Nixon and Kissinger were well aware that the support of Pakistan, through third countries like Jordan and Iran, violated US law. This was the subject of several discussions in the White House, and they sought to conceal these illegalities. But in all these discussions, hardly any thought was given to the question whether international law had anything to say on the question whether the US could support Pakistan in carrying out mass killings and later engage in an interstate war. If any consideration was given, it was contended that this was an internal matter for Pakistan. The fact that the US did not consider itself under an obligation to prevent the killings was not so remarkable – after all, the ICJ’s Genocide judgment was still 35 years away. More striking is the absence of any thought given to the question whether international law poses any constraints on aiding another state in the carrying out of mass killings. There is little doubt that, given the decision to flout national law, anything that international law might have had to say would have been of little concern for the US government. But the absence of any consideration, more than 20 years after the adoption of the Genocide Convention and the Geneva Conventions, five years after the adoption of the ICCPR and one year after the ICJ’s Barcelona Traction judgment is instructive. This tells us something about the weight the US attached to international law in that particular context, but also raises questions about the status of complicity prohibitions at least at that time.

There are other points that should be of interest to international lawyers. One is that Bass’s account reminds us that it is not just actions, but also omissions that matter. Many principles and processes of international law presume active conduct. Of course there was active US conduct in the form of assistance to Pakistan. But the book also demonstrates how doing nothing may emerge from wilful decisions, and may actively shape the conduct of others, and that indeed there is a thin line between acts and omissions. Omissions can be as important in explaining outcomes as purposeful conduct.

Another point of interest relates to India’s decision to attack Pakistani forces. In the literature this has often been cited as a precedent for humanitarian intervention, and it routinely is cited together with the 1998 Belgrade bombings in support of this development. Bass correctly points out that the Indian motives in fact were not all that clear, and that it may well be that what drove India was first and foremost self-interest. But what is particularly remarkable in his rereading of this episode is the outright opposition of the US to a policy of India that, whatever its other motives, sought to bring an end to the killings. As Bass describes, the US not only dispatched ships into the Bay of Bengal, and even encouraged (in secret meetings in New York’s Upper East Side) China to move troops to the Indian border to prevent the attempt to save lives.

While inviting us to reflect on these grand questions, the books main narrative is focused on individual conduct. It provides intriguing insights into the role and responsibility of (legal) advisors. Bass recounts how, during several discussions in the White House on the illegal support for Pakistan, the lawyers who were present remained fully silent. On the other hand, Archer Blood, then US Consul General in Dhaka, adopted a different attitude (which explains the book’s title). He and his staff reported to the State Department in Washington the killings in detail and urged for a powerful intervention to try to bring the killings to an end. This led to nothing but silence in Washington, but the cables are a strong reminder of how (legal) advisors in these types of situations can act responsibly.

This type of detailed history of international crisis has much to offer for international law. It allows international lawyers in their assessments of legal developments such as an emerging duty to prevent genocide, a right of humanitarian intervention and so on, to attach due weight to what states actually do, and in particular to why they act or do not act in a particular way. Further studies of this type, which then ideally should more expressly engage with the role of international law, would be a welcome contribution to the discipline.

One Response

Thanks for recommending Bass’ book, which is indeed important, if only for setting the record straight. As I noted elsewhere:

Henry Kissinger, a moral monster who exemplified the dark arts of immoral and amoral Realpolitik while at the pinnacle of political power in the United States, is a living reminder of why we established (several ad hoc and hybrid, as well as one permanent) international criminal tribunals and need universal jurisdiction in the quest for international criminal justice. If you’re not well acquainted with the precise reasons why Kissinger is rightly referred to in some quarters as a “war criminal” (although one could plausibly argue he is also guilty of crimes against humanity and complicity in genocide, among other crimes), see the first and still best summary of the particulars of this searing public indictment in Christopher Hitchens’ The Trial of Henry Kissinger (Twelve, 2012; first edition, Verso, 2001, 2002 with new preface). I’ll provide more thorough references in a future post, but for now see too the 1987 edition of Sideshow: Kissinger, Nixon, and the Destruction of Cambodia (Cooper Square Press) and Gary J. Bass’ new book, The Blood Telegram: Nixon, Kissinger, and a Forgotten Genocide (Alfred A. Knopf, 2013). The following excerpt is from the latter volume:

“Nixon and Kissinger bear responsibility for a significant complicity in the slaughter of the Bengalis. This overlooked episode deserves to be a defining part of their historical reputations. But although Nixon and Kissinger have hardly been neglected by history, this major incident has largely been whitewashed out of their legacy—and not by accident. Kissinger began telling demonstrable falsehoods about the administration’s record just two weeks into the crisis, and has not stopped distorting since.”

In 1971, West Pakistan’s genocidal campaign in East Pakistan caused at least 8 million East Bengalis to flee to India, taking refuge in nearby Indian states and prompting a humanitarian crisis the U.S. could no longer ignore. Yet the evil of genocide was not, it seems, sufficient: “Nixon bitterly said, ‘The Indians need—what they really need is a—’ Kissinger interjected, ‘They’re such bastards.’ Nixon finished his thought: ‘A mass famine.’”

About the Author(s)

André Nollkaemper

André Nollkaemper is President of European Society of International Law, and Dean and Professor of Public International Law at the Faculty of Law of the University of Amsterdam. He also is Member of the Permanent Court of Arbitration , external Legal Advisor to the Minister of Foreign Affairs of the Netherlands, and member of the Royal Academy of Arts and Sciences of the Netherlands. Read Full